The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and it does not look good for the City and the State. The court's majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to "segment" or "phase" it, and thereby put off evaluation of the entire project's possible impact of burials.

In the film "The Descendants," George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title. Hawaii law requires that the government consult with persons who are descendants of "iwi kupuna" (Native Hawaiian remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be located in the latter phases of the rail project before it turned the first shovel of dirt in the first phase. The heart of the case is whether the City and State have the discretion to define the scope of the project, and can decide to break it up into pieces, rather than evaluate the entire Kapolei-to-Ala Moana route.

As Deputy State Attorney General William Wynhoff argued, it was reasonable and practical for the agencies to conclude (along with the trial court) that the possible presence of burials in Kakaako should not hamper construction going on twenty miles away in Kapolei. That may be true, but the Hawaii Supreme Court has in the past not been swayed by arguments about practicality (see the Superferry case, for example), and is especially skeptical of agencies' claims that they get to define the scope of their own authority (see Superferry and other cases), especially when environmental plaintiffs or Native Hawaiians are making the claim.

The court was active in its questioning, and particularly skeptical of the City's and the State's arguments. Circuit Judge Mark Browning, sitting by designation for the recused Justice Acoba, asked perhaps the most difficult question when he challenged the private attorney representing the City who argued that there was no actual threat to burials since the City can undertake mitigation measures, or can even move the rail alignment should they be discovered: "How do you know there's no actual threat," Judge Browning asked, "unless you've studied it?"

The City's lawyer was hard pressed to answer that question. It appears that at least three of the Justices (Nakayama, McKenna, and Judge Browning) are inclined to view the government's ability to define the rail project as a series of four discrete segments with very little deference.

Earlier today, the Hawaii Supreme Court heard oral argument in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a "phased" or segment-by-segment basis. (A preview and briefs are posted here.)

Hawaii law requires that the government must undertake a survey and consult with persons who are descendants of "iwi kupuna" (Native Hawaiian buried remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be located in the latter phases of the rail project before it turned the first shovel of dirt in the first phase. The City and the State argue that their agencies have the discretion to define the scope of the project, and were within that discretion when they broke up the 20 mile rail project into four pieces, and may evaluate the final phase after beginning work on the first phase. The circuit court didn't think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the archaeological reviews.

As we noted earlier, a majority of the jurists hearing the case today seemed quite skeptical of those arguments. The arguments had a different flavor than usual, because one of the Court's more active questioners, Justice Simeon Acoba, was recused (along with Justice James Duffy), and two circuit court judges -- R. Mark Browning and Fa`auuga To`oto`o -- were assigned in their places. But the bench was still "hot," with Associate Justice Sabrina McKenna leading the charge in casting doubt on the position staked out by the City and the State. Her questioning at times verged on a cross-examination of counsel, and appeared to be highly skeptical of the arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to "segment" or "phase" it.

Circuit Judge Browning asked perhaps the most pointed question of the day when he challenged the City's attorney's claim that the rail project poses no "actual threat" to burials since the City can undertake mitigation measures if and when they are discovered. "How do you know there's no actual threat unless you've first studied it?" The City's lawyer didn't really have a clear and definitive answer to that question, and that response was, in our view, revealing. Chief Justice Recktenwald also seemed to accept the challengers' argument that the administrative regulations envision a linear process -- one in which construction only follows complete data gathering and vetting -- and he said he could not quite understand how the City would "get around the plain language of the rules."

There was some argument on the standing issue (how could a descendant whose iwi are allegedly in the Kakaako phase attempt to stop construction of the Kapolei phase), but we predict that this question will be mostly academic. The court has not been terribly bothered by standing issues in the past, especially where environmental and Native Hawaiian plaintiffs are concerned, and as a consequence, their lawyers rightly treat standing as more of a pleading requirement than an actual limitation on the court's jurisdiction. We'd be surprised if that were not true in this case as well.

It's always risky to predict the outcome of appellate arguments based on the questions from the bench, but it appears to us that the appellants have gone a long way in convincing at least three members of the court (Justices Nakayama and McKenna, and Judge Browning) of their arguments, and that the Chief Justice is also inclined to view the government's ability to define the rail project as a series of four discrete segments with very little deference.

The one point that was left unaddressed was remedy. If the court agrees with the challengers, then what next? We have to assume that the court will not lightly halt in its tracks (sorry, could not resist the bad pun) the most massive public works project in the State's history, although it has not hesitated in the past to put the kibosh on big projects, even if they are already underway (see the Superferry case, for example). We sense that this case is different because it is a purely governmental project and not one being pushed by a private entity, like the Superferry, and that the court must be acutely aware that the rail is not only the biggest project in memory, but also a political football of sorts, and is shaping up as the key issue in the ongoing mayoral campaign. We're not sure how to square a determination that the government needed to evaluate the entire project before starting, with the fact that it already has started. Is it a case of "let justice be done, though the heavens fall?"

We doubt it, since that would mean that construction of the rail project (20 miles away, as noted by the State's counsel) must be stopped while the archaeological studies for the downtown phase are completed. The challengers have asked for an injunction pending appeal, but that issue was not raised or discussed at all in today's arguments. If the court agrees with the challenges, we predict that it will require a supplemental archaeological study, and let construction continue. The City and State lawyers both acknowledged, after all, that if such a study were to discover significant archaeological resources in the path of the project, mitigation measures, including possible realignment of the rail footprint, would need to be done.

Finally, here's some things about appellate advocacy we learned today:

When the Chief Justice asks an advocate a question that could be answered with a "yes" or a "no," it's probably better to begin your answer with a "Yes, Chief Justice," or "No, Chief Justice," and then follow with your explanation. Because if you don't, and you simply launch into your explanation, by the time you complete it, you may have forgotten to give the Chief the direct answer, and he will then follow up with "Counsel, is that a 'yes' or a 'no'?"

We like appellate oral arguments that begin with "May it please the Court." Just sayin’.

Sometimes, the best way to approach rebuttal argument is to say "unless the Court has any further questions that I can address, we are prepared to waive the remainder of our time." Quit while you are ahead.

Stay tuned. Due to the public nature of the case and the issues involved, we predict a decision sooner than later.